The Supreme Court has agreed to hear a challenge to New York's concealed carry permit law, its first major Second Amendment case in more than a decade. Wall Street Journal Supreme Court correspondent Jess Bravin joins CBSN's "Red & Blue" host Elaine Quijano to discuss the potential implications.
- The Supreme Court is agreeing to hear a case that has the potential to expand the scope of the Second Amendment. The last time the high court heard a major case on gun rights was more than a decade ago. In 2010, the justices affirm the right for Americans to keep handguns in their homes. Now they'll be looking at a lawsuit brought by the New York affiliate of the National Rifle Association and gun owners who say they were denied permits to carry a concealed firearm.
Wall Street Journal Supreme Court Correspondent Jess Bravin joins me now with more. Welcome Jess. Thanks very much for being with us. So how different does the Supreme Court look compared to the last time it heard a Second Amendment case and what impact could that have?
JESS BRAVIN: Well the big change that we've seen when it comes to gun cases is the replacement of Justice Anthony Kennedy with Brett Kavanaugh and especially Justice Ruth Bader Ginsburg with Amy Coney Barrett. Both of those justices, the new justices, are expected to have much more expansive views of the gun rights the Second Amendment affords individuals than did their predecessors.
Justice Neil Gorsuch, who succeeded Antonin Scalia in 2017, pretty much would be expected to continue Justice Scalia's view which also saw quite a broad right in case on the Second Amendment.
- Well Jess, what potential changes could we see come out of this case?
JESS BRAVIN: Well, there's the situation regarding this New York law, which as you said, it involves concealed carry permits outside the home. One of the questions is whether there is a general right to carry a weapon for self-defense outside the home. Supreme Court I think is likely to say yes there is.
And this law, which gives a tremendous discretion to state officials to decide who has a legitimate purpose for carrying a gun outside the home, may face some pretty tough scrutiny. More broadly is really the way that the court is going to approach the case.
Lower courts have been using a test that has been very very favorable for local and state governments that have gun laws on the books that looks that you know, is this type of situation the law covers? Does it fall under the Second Amendment? And if so, does the government have a sufficient justification for restricting access to weapons or ammunition? And the vast majority of gun regulations in the United States that have been challenged since 2010 have been upheld.
The court could take a different approach, one that Justice Kavanaugh and Justice Barrett have championed, which says, no, don't do this sort of balancing test. Instead look at the text and the history and tradition of weapons used in the United States, and does this gun law appear consistent with that? That approach, in some instances, is likely to end up striking down gun laws that otherwise might have been upheld.
- So no doubt, this is going to be a closely watched case. While we have you, Jess, I want to ask you about another case. The Supreme Court also agreed to hear a case on whether a Guantanamo Bay detainee can get testimony from a US government contractor who allegedly tortured him. What do we know about this?
JESS BRAVIN: Well this involves Abu Zubaydah. When he was captured in 2002, it was a big deal in the United States. He was portrayed as a major al-qaida figure. The government subsequently walked back those assertions about how culpable this guy was. But in any event, he has been held at Guantanamo Bay for most of the past two decades. He's still there now, hasn't been charged.
He was one of the detainees who the United States acknowledged had been waterboarded and confined in small boxes and beaten and had all kinds of other things done to him, which are fairly universally acknowledged as torture right now. He was held in a black site in Poland. It's a little complicated procedurally. But a European Court found that Poland violated a human rights treaty by permitting this black site on its territory.
There's a criminal complaint against the Polish government and Polish officials for that that Abu zubaida has filed. As part of the investigation, he wants testimony and evidence from the two psychologists, Dr. Mitchell and Dr. Jessen, who developed the CIA interrogation program. A lower court said that they could be required to testify to a degree. Although much of what they said would be exempt from testimony under the state secrets privilege.
The United States government is saying no we don't want them testifying at all in this case. Everything or anything they say could endanger US national security. We invoke this state secrets privilege to exclude them from the lawsuit.
The Supreme Court is going to decide whether the US government and the CIA director, in this case, it was Richard Pompeo-- later the Secretary of State-- whether they can just simply make a declaration, and the courts have to defer to the CIA's judgment about what endangers national security or whether the court can make its own judgment about whether there are at least some issues, many of which are publicly known, that these two witnesses would be permitted to testify about.
- All right, Jess Bravin for us. Jess, thank you very much. You bet.